Smith v. Costulas

• Decision Date: 27 May 2015
• Docket Number: J-S31019-15,No. 1597 MDA 2014,1597 MDA 2014
• Court: Pennsylvania Superior Court
• Parties: CHARLES M. SMITH AND APRIL M. SMITH, Appellees v. GEORGETTE L. COSTULAS AND CHRISTOPHER COSTULAS, Appellants

CHARLES M. SMITH AND APRIL M. SMITH, Appellees v. GEORGETTE L. COSTULAS AND CHRISTOPHER COSTULAS, Appellants

J-S31019-15

No. 1597 MDA 2014

SUPERIOR COURT OF PENNSYLVANIA

MAY 27, 2015

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment entered on August 21, 2014, in the Court of Common Pleas of Clinton County, Civil Division, at No(s): 2012-01343

BEFORE: BENDER, P.J.E., ALLEN, and WECHT, JJ.

MEMORANDUM BY ALLEN, J.:

Georgette L. and Christopher Costulas, ("Appellants"), appeal from the trial court's judgment in favor of Charles M. and April M. Smith, ("the Smiths"). Finding waiver, we affirm the trial court's judgment in favor of the Smiths.

The trial court set forth the factual and procedural background relative to this action as follows:

This matter was initiated by [the Smiths'] complaint filed on November 15, 2012 alleging that [Appellants] placed material consisting of dirt, rocks, stumps and trees inside the boundary of a "paper alley" known as "Lexington Alley" and removed fill and knocked down/destroyed/removed trees from property owned by [the Smiths]. Various hearings on the issues raised in [the Smiths'] complaint were conducted before Senior Judge J.Michael Williamson on the dates of July [30]¹, 2013; September 17, 2013²; and October 22, 2013. In addition, the record would confirm that a view of the property was also conducted by Senior Judge J. Michael Williamson prior to the entry of the Court's Order on October 23, 2013[, which was docketed on October 24, 2013]. In that Order, the Court resolved all issues of credibility with respect to the placement of the aforementioned materials in favor of [the Smiths].

The Court de[clined] to award [the Smiths] attorney's fees finding that [Appellants'] actions were not so intentional and vexatious as to warrant an award of attorney's fees.

The Court further declined to establish a value for [the Smiths'] parcel but in the alternative, provided [Appellants] with an opportunity to remedy the injury they caused [the Smiths] by making repairs to the affected property which would require [Appellants] to repair the damages to [the Smiths'] property, remove all materials placed on Lexington Alley and restore Lexington Alley to a comparable condition prior to their trespass. The Court further directed [Appellants] that all remedial action must take place in accordance with government regulations including the Ordinances of Chapman Township and regulations of the Pennsylvania Department of Environmental Protection.

[Appellants] were provided a timeframe of sixty (60) days within which to complete the repairs to [the Smiths'] property and Lexington Alley and provided [the Smiths] with the opportunity to advise the Court if further proceedings were required.

On or about January 6, 2014, this matter was transferred from Senior Judge J. Michael Williamson to the undersigned. The Court then received correspondence from the Clinton County Conservation District dated January 20, 2014, which resulted in this Court scheduling the matter for an on-the-record status hearing which took place on February 18, 2014³. At that time [the Smiths] advised that [Appellants] had not, in their opinion, properly repaired [the Smiths'] property and Lexington Alley and requested that the matter be scheduled for a hearing to determine what, if any, damages [Appellants] were liable for. This Court granted [the Smiths'] request and a further hearing was conducted on March 1[3], 2014. At the conclusion of the hearing the parties agreed that the Court was permitted to conduct its own view of the property without the parties or their counsel being present. That view was completed on March 18, 2014.

Trial Court Opinion and Order, 4/9/14, at 1-2 (unnumbered).

On April 9, 2014, the trial court found in favor of the Smiths and against Appellants, and awarded the Smiths $7,132.00 in damages. Id. at 6 (unnumbered).

Our review of the certified trial court record and of our own Superior Court docket yields the following additional details. On April 21, 2014,Appellants moved for post-trial relief. Appellants' post-trial motion averred that "[v]arious hearings in this matter were conducted in front of the now-Senior Judge J. Michael Williamson on July [30], 2013, September 17, 2013, and October 22, 2013." Appellants' Motion for Post-Trial Relief Pursuant to Pa.R.C.P. 227.1, 4/21/14, at 1. Appellants further averred that "additional evidence was presented in front of the Honorable Michael F. Salisbury on March 1[3], 2014." Id. Appellants specifically observed that the trial court entered its award of damages in favor of the Smiths "[f]ollowing the March 1[3], 2014 hearing." Id. Appellants' post-trial motion did not contain any exhibits. Appellants requested that the trial court "modify its Order of April 9, 2014 to find in favor of [Appellants] as [the Smiths] have failed to meet their burden of proof regarding damages." Id. Appellants acknowledge, "[w]hile Appellants did not specifically request a JNOV in this matter, the Motion for Post-Trial Relief filed on April 21, 2014, asking for the lower court to find that [the Smiths] failed to meet their burden of proof with respect to damages, essentially served the same purpose." Appellants' Brief at 15.

The trial court did not rule on Appellants' post-trial motion within 120 days. Accordingly, on August 21, 2014, the Smiths filed a praecipe for entry of judgment pursuant to Pa.R.C.P. 227.4(1)(b). On the same day, judgment was entered in favor of the Smiths. Judgment, 8/21/14, at 1. On September 22, 2014, Appellants filed their notice of appeal.

On September 25, 2014, the trial court specifically ordered Appellants "to file of record in the lower court and to serve on the trial judge and theofficial court reporter, pursuant to Paragraph (b)(1) of Rule 1925, ... [a] concise Statement of the Matters Complained Of ...[and] [a] Statement identifying any transcript which may be necessary for Appellate purposes." Order, 9/25/14, at 1. On October 1, 2014, Appellants filed their Pa.R.A.P. 1925(b) statement, but did not file any statement identifying any transcripts necessary for appellate purposes as ordered by the trial court. See generally Appellants' Statement of Matters Complained of on Appeal Pursuant to Rule 1925(b), 10/1/14.

On October 8, 2014, the trial court issued an order, docketed on October 9, 2014, stating:

[T]his Court having received and reviewed the Statement filed by Appellants pursuant to this Court's Order of September 25, 2014, and Appellant[s] not identifying any transcripts which may be necessary for Appellate purposes, IT IS HEREBY ORDERED [that] [t]he Office of Clinton County Prothonotary shall immediately prepare the file and forward said Court file to the Prothonotary of the Superior Court[, and] [t]he Official Court Reporter is directed not to prepare any transcripts in this matter.

Order, 10/9/14, at 1 (emphasis in original).

The certified record transmitted from the Clinton County Prothonotary to this Court does not contain a single transcript from any of the five (5) hearings conducted in this case. Likewise, none of the pleadings, briefs, or memoranda filed by the parties contain a single exhibit of any kind.

A review of our Court's docket reveals that on October 14, 2014, we issued an order, which provided:

The trial court record has been filed in this office in the above-captioned matter.

It is your responsibility to review the record inventory list and make sure that the certified record forwarded to this court contains those documents necessary to the issues raised on appeal; failure to do so may result in waiver. Pa.R.A.P. 1926, 1931(d); Bennyhoff v. Pappert, 790 A.2d 313 (Pa. Super. 2001); Commonwealth v. Wint, 730 A.2d 965 (Pa. Super. 1999).

Pursuant to Pa.R.A.P. 2185(a) briefs for the appellant must be filed on or before November 24, 2014.

Order, 10/14/14, at 1 (emphasis in original).

On November 26, 2014, Appellants filed an application to extend the time to file their appellate brief⁴. Appellants averred:

2. Through their Motion for the Production of Trial Transcripts, filed on October 10, 2014, Appellants requested the production of the transcript of the trial court proceeding that took place on October 22, 2013, which the trial court ordered be produced through an Order dated October 13, 2014.

3. Said transcript of the October 22, 2013 trial court hearing was produced by the court reporter on November 14, 2014.

4. Appellants' counsel has had possession of the relevant transcript for only six (6) days prior to the November 24, 2014 briefing deadline imposed by this Honorable Court.

5. Appellants respectfully request an additional sixty (60) days in which to file their appellate brief in this matter in order to allow for a full review of the transcript at issue.

Appellants' Motion to Extend Briefing Deadline, 11/26/14, at 1. Appellants' motion does not reflect any efforts to produce the transcripts relative to theJuly 30, 2013, September 17, 2013, February 18, 2014, or March 13, 2014 hearings. Our docket does not reflect any application by Appellants to supplement the certified record with the October 22, 2013 hearing transcript pursuant to Pa.R.A.P. 1926.

On December 1, 2014, by per curiam order, we granted Appellants' motion and ordered that Appellants' brief "shall be filed on or before January 23, 2015." Order, 12/1/14, at 1. Thereafter, Appellants filed their brief and reproduced record, with a certificate of service dated January 23, 2015. Our docket reflects a date stamp/filing date of January 29, 2015.

On February 4, 2015, the Smiths filed an application for additional time to file their responsive appellate brief. The Smiths averred in pertinent part:

5. Appellants did not, at any time, serve and file a designation of the record as required by Rule 2154(a) of the Pennsylvania Rules of Appellate Procedure. Accordingly, until [the Smiths] received service of Appellants' Reproduced Record on January

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